For corporate killers, the free ride’s over

Each year on April 28, unions and other labour organizations across Canada observe the National Day of Mourning for workers killed or injured on the job. A solemn public ritual, the Day of Mourning ceremony typically features a procession of “pallbearers” carrying empty black coffins to a temporary memorial ground in a prominent location, each casket representing a workplace fatality from the previous year. Flags fly at half-mast. There’s a moment of silence, followed by a somber hymn on bagpipes. Assembled mourners—mostly union activists—wear yellow armbands emblazoned with the canary-in-a-coalmine symbol. Invited speakers, decrying the lack of tough laws to protect worker safety and prosecute careless employers, call on those present to “mourn for the dead and fight like hell for the living.” On the sidelines, confused onlookers wonder what it’s all about: most people don’t have a clue what “Day of Mourning” means, even if the media happen to be covering it.

Despite spending the first fifteen years of my working life in journalism, I had never heard of the National Day of Mourning until 2004 when I was hired by the Canadian Union of Public Employees. That was two decades after CUPE’s National Health and Safety Committee first proposed the idea for a special day, which the Canadian Labour Congress adopted in 1985. Since then, April 28 has become a red-letter date on the union activist calendar—right up there with Labour Day and May Day in its symbolic importance. Now, after more than a dozen years covering it for the union magazine, I too accept the Day of Mourning as part of the regular news cycle. But each year, the same nagging questions about it keep bothering me: Why do 1,000 people a year in this country keep dying on the job? Why can’t we lower that number? Why is it so hard for governments and law enforcement agencies to prosecute corporate negligence in cases of workplace death? Are the lives of workers that expendable?

Empty coffins line the stage as CUPE BC President Paul Faoro addresses the Day of Mourning ceremony at the B.C. Legislature on April 28.

Tom Sandborn can answer those questions. A freelance journalist whose writings have ranged from literary book reviews for the Vancouver Sun to investigative reports on labour and health issues for The Tyee, he also has five decades of social justice, peace and environmental activism under his belt. (Full disclosure: Sandborn and I first met in 1991 after both writing essays for the Sun on the dubious politics of the mythopoetic men’s movement—remember that? —and still belong to a small circle of good friends. While I’m indebted to him for his positive Sun review of my book on Pope Benedict a few years ago, he has never asked me to scratch his back in return—at least, not with writing.) A couple of years ago, the United Steelworkers (USW) commissioned him to pen a special report on the union’s lengthy campaign to achieve better legal protections for worker safety and hold negligent employers criminally responsible for workplace fatalities. Hell’s History is the result.

Hell underground – Westray’s human cost

The USW campaign began in Pictou County, Nova Scotia during the spring of 1992. Early on the morning of May 9—just as the union was nearing completion of an organizing drive for employees of Westray’s Plymouth mine operation—the mineshaft exploded, killing 26 workers. Hell’s History looks at Westray and other workplace disasters in Canada over the ensuing quarter century, exploring why the corporate mentality governing industrial operations has so often resulted in workplace tragedy and what can be done about it. Sandborn begins with a brief history of mining politics in Nova Scotia, the anti-union labour climate in Pictou County, some of the political pressures and deal-making that established the Westray mine, and the ways in which its operators compromised on safety to save costs, putting the mine on a “predictable path to disaster” as the final report of a public inquiry into the explosion put it.

As part of his research, Sandborn interviewed survivors of Westray and other industrial disasters, including relatives of the dead. The human stories that emerge from the piles of rubble and statistics have great poignancy. Here we meet Alan Doyle, brother of Robbie (at 22, the youngest miner to die at Westray), who tells Sandborn how he, too, would have died that morning had he joined his brother below ground. We meet Allen Martin, whose brother Glenn was only nine months into his first mining job at age 35 when the explosion killed him. (Allen recalls how the father of another miner, consoling him for his loss, told him how Glenn had courageously saved his son in an earlier incident by pulling him off a conveyor belt to safety after a falling rock had stunned him.) And we meet Vern Theriault, a blast survivor and one of the first to go back into the treacherous mine ruins that day, in the faint hope of rescuing co-workers—an act that, 12 years later, earned him one of the 96 Medals of Bravery awarded to rescue workers at Westray.

Westray mine: the aftermath.

The “hell” in the title comes from Alan Doyle’s description of the Westray mine, which had been open for less than a year before the fatal blast. During those few months of operation, regulators noted problems with coal dust and ventilation more than once, and there were several rock falls. But management did nothing to address these concerns: the untreated dust and gas were simply allowed to build up to lethal levels over a short period, ultimately igniting into the raging fireball that killed Robbie Doyle and 25 other miners. “That mine was… run by intimidation. The inspectors were led around by the nose and mainly ignored,” Alan tells Sandborn. “Once an inspector caught them with a bulldozer underground with unshielded sparks coming off it. [When] the inspector left the mine, the foreman ordered Robbie to take the dozer back underground ‘…if he wanted to keep his fucking job.’” Stories like these—in which workers are forced by bad management to risk their lives simply by reporting for duty—are all too frequent, as Sandborn reveals. In the saddest of ironies, many of the dead turn out to have been the ones who sounded the alarm before falling victim to the hazardous conditions they noticed.

Corporate responsibility versus the Dickensian mindset

We learn, for example, about Sam and Arlen Fitzpatrick, who were employed by the construction giant Kiewit as rock scalers at a run-of-the-river project in Toba Inlet, north of Powell River, B.C., when disaster struck. After reporting for their shift on the morning of February 22, 2009, the two brothers were ordered to work downhill from heavy equipment—despite informing their supervisor that, the previous day, a heavy boulder dislodged by uphill activity had rolled down the hill and damaged some equipment. A few hours after their pleas were ignored, Sam Fitzpatrick was focused on the noisy, high-power drill he was operating when a giant boulder came rolling down the hill and crushed him to death. An excavator operator working uphill had seen the rock falling and radioed a warning. But Sam—who, working without a radio, was shut off from outside noise by the ear protection he was wearing—never heard the warning screams of his brother, who ran toward him with waving arms. Arlen had to witness the moment of Sam’s gruesome death.

Worksafe BC cited Kiewit for “reckless and grossly negligent” decision-making for ordering heavy equipment to operate upslope from where the Fitzpatrick brothers were working. For its “deficient safety planning and supervision” and “lack of effective risk assessment,” the company was hit with a quarter-million dollar fine. This was 17 years after Westray, one of the worst industrial disasters in recent Canadian history. Justice K. Peter Richard, who led the Westray public inquiry, concluded that the disaster was the result of “incompetence, mismanagement, bureaucratic bungling, deceit, ruthlessness, cover-ups, apathy, expediency and cynical indifference.” Such damning indictments of corporate negligence say a lot about the Dickensian mindset of some of these company men: obsessed with productivity and profit at the expense of worker safety, such callous employers embrace a labour relations model reminiscent of the nineteenth century.

The Fitzpatrick brothers: Sam (left) and Arlen.

In the decade that followed the Westray explosion, USW lobbied Members of Parliament for Criminal Code amendments that would include corporate executives and directors responsible for negligence leading to serious workplace injuries or fatalities. The Westray Law finally passed in 2003 and came into effect the following year. Over the next decade, however, no Criminal Code charges resulted and the workplace fatalities continued to pile up. Sandborn cites two cases in which enforcement failed and USW opted for private prosecution: those of Lyle Hewer, who died of asphyxiation in November 2004 after being ordered to climb into a wood waste grinder at Weyerhaeuser’s sawmill in New Westminster B.C., and USW members Jordan Fram and Jason Chenier, who were working at a nickel mine near Sudbury, Ontario in June of 2011 when they drowned in a 350-ton “run of muck”—a flood of mud, rock and water—that engulfed them.

Giving the law some teeth

In 2012 the USW launched its largest national campaign ever, Stop the Killing: Enforce the Law. “To achieve the societal change necessary to keep workers from dying on the job requires that, just like impaired driving, workplace fatalities must become a public anathema,” the USW leaders write in the foreword. “Just like other criminal laws, we know the power of deterrence is critical.” That same year saw a couple of major disasters occur within three months of each other at lumber mills in northern British Columbia: the Babine Forest Products mill at Burns Lake and the Lakeland Mills plant near Prince George. Both mills exploded and burned, killing four workers and seriously injuring many more. Sandborn describes the “nightmarish mirroring” of the Westray explosion: “The lethal explosions at the mills took place in the context of work speedup and imperfect regulatory inspections, long exhausting shifts and work sites covered with fine, flammable dust that should have been cleared away.”

In his account of the Babine/Lakeland aftermath, Sandborn notes that Crown Counsel declined to lay charges against any of the management figures at the two mills because “WorkSafeBC (the provincial safety regulator) had so badly bungled the initial investigation into the fires that there would be no reasonable possibility of getting a conviction.” Lakeland management used this outcome to appeal the $724,000 fine levied against the mill, just as Babine management appealed its own $1 million fine. Sandborn, quoting Lakeland’s press release announcing its appeal, notes the company’s belief in Crown counsel’s “clear statement” that a sawdust-related explosion was a “previously unrecognized hazard” to both the B.C. sawmilling industry and WorkSafeBC and thus that the “risk of catastrophic explosion was not forseeable to Lakeland.”

A class action lawsuit, filed in January 2016 against WorkSafeBC and the province of B.C., appeared to expose the folly of such preposterous claims. “The application,” notes Sandborn, “suggests that any silence from WorkSafeBC on dust and safety issues at the mills reflects not the absence of danger but a failure on the part of WorkSafeBC inspectors to do their due diligence and recognize the mills for what they were, ticking time bombs waiting to go off.” Surely damning to the defendants’ case is an internal WorkSafe memo, written between the Babine and Lakeland disasters, which the USW obtained after two freedom of information requests. Written by the regional prevention manager for the Interior North, the memo cites “pushback” from industry “…if enforcement strategy is pursued at this time.”

Tom Sandborn

It’s hard not to feel anger when reading all this. Throughout Hell’s History, we see the parallels between Westray and disasters that followed, including the ways that politics influence the investigative process. (Like the Nova Scotia Conservative Party’s connections to Westray shareholders, Kiewit—whose managers have thus far avoided accountability for the death of Sam Fitzpatrick—is connected to the BC Liberals, donating $96,575 between 2005 and 2011.) We learn of workers being paid or bribed not to report injuries. We learn of managers cutting corners on safety to satisfy the company’s bottom line. We learn of regulators turning a blind eye. And yet, there is progress: between 2013 and 2016, the RCMP and Crown counsel across Canada bumped up the number of cases investigated for possible Westray Act prosecution, and in a few cases charges have been laid.

Reasons for optimism

In 2015, the RCMP opened an investigation into whether Westray Act charges should be laid against Kiewit and some of the managers involved in Sam Fitzpatrick’s death. In January 2016, the first Westray Act conviction resulted in a three-and-a-half-year prison sentence for project manager Vadim Kazenelson of Metron Construction, for his role in the Christmas Eve 2009 deaths of four workers and the injury of a fifth. (The men were working on a Toronto high-rise when the swing stage they were on collapsed and fell to the pavement 13 stories below. The company was found to have rushed the job in order to cash in on a $50,000 bonus for early completion; Kazenelson was found responsible for overloading the stage with too many workers.) Concluding on an optimistic note, Hell’s History lists several recent examples where Westray Act charges have been laid and suggests that more progressive change is on the way—a good prediction, it turns out.

Last week, on the eve of this year’s National Day of Mourning, the federal government announced its commitment “to working with the Canadian Labour Congress and its members, with employers, and with our provincial and territorial partners, to help ensure that the Westray provision is applied effectively.” The fulsome joint statement by Justice Minister Jody Wilson-Raybould and Labour Minister Patricia Hajdu pledged that the Trudeau government would “do more to ensure that labour inspectors and law enforcement officials are properly trained in the provisions of the law, and that they coordinate effectively to ensure that the possibility of a charge for criminal negligence, resulting in a serious injury or death is not overlooked.” The next day, on April 28, the Alberta NDP government announced the Westray Memorandum, an MOU with ten police services aimed at improving the investigation of deaths and serious injuries in the workplace. The plan sets protocols to make it easier to determine whether criminal charges or charges for workplace violations are warranted.

As Sandborn observes, none of this progress would have been possible without the dogged persistence of the workers and family members who fought for so long to see justice for the dead. “If the path from Westray to Lakeland Mills has taught us anything,” he writes, “it is that hope is not enough. Whatever improvements have been made in the way criminal law treats corporate killers have been won by organized workers putting pressure on politicians and regulators…. We owe it to the dead and injured of Westray and the B.C. mill fires and all the other workers sickened, crippled and killed by employers’ negligence to keep the heat on.”

On May 9, as his fellow British Columbians nervously await the results of a provincial election that could make all the difference for the lives of workers, Sandborn—who cast his vote in the advance polls—will be in Pictou Country, Nova Scotia. Standing side by side with relatives of the Westray dead, on the edge of the old abandoned mineshaft itself, he will take part in a ceremony marking the twenty-fifth anniversary of the tragedy. On a Day of Mourning like no other, he will light a candle in tribute—and for better times ahead.